About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 61
|
|
Ramorei v Erf 3[...] Bloemfontein (Pty) Ltd and Others (1065/2024) [2024] ZAFSHC 61 (26 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 1065/2024
In
the matter between:
KEDISALETSE
GLORIA RAMOREI
Applicant
and
ERF
3[…] BLOEMFONTEIN (PTY) LTD
1
st
Respondent
(Reg.
no.: 2017[…])
JOHANN
COERTZEN INC
2
nd
Respondent
(Reg.
no.: 2012[…])
CENTURY
21 BLOEMFONTEIN
3
rd
Respondent
THE
REGISTRAR OF DEEDS: BLOEMFONTEIN
4
th
Respondent
CORAM:
MOLITSOANE, J
HEARD
ON:
23 FEBRUARY
2024
JUDGEMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
26 FEBRUARY 2024
[1]
The applicant seeks an order on an urgent basis for the following
relief:
a) That
the fourth respondent be prohibited from granting transfer of the
property to the applicant pending the
finalisation of an action to be
instituted to cancel the sale agreement and intended transfer of the
property into the applicant’s
names and that the purchase price
in the amount of R570 000.00 (five hundred and seventy thousand rand)
be repaid/restituted to
the applicant;
b) That
this order should operate as an interim order with immediate effect
pending the final adjudication of
the action.
Only the first, second
and third respondents oppose the application. For convenience, unless
the context indicates, reference to
respondents will be to the three
opposing respondents.
[2]
The facts of this case are largely common
cause or are not seriously in dispute. Charmain du Preez
(Charmain)
is an estate agent employed by the third respondent. She is also
entrusted with the responsibility of managing the rental
of the
applicant’s investment property situated at Sereno complex,
Shellyvale, Bloemfontein. She also undertook the marketing
of the
developer’s property acting as the agent of the first
respondent.
[3]
Around 17 January 2024 the applicant approached Charmain to find her
an investment property that
she could rent out as student
accommodation. It is apposite at this early stage to indicate that
the applicant avers that Charmain
made certain representations to
her, however, the deponent on behalf of the respondents pleaded that
he could not respond to what
was discussed between the applicant and
Charmain as he had no knowledge thereof. He took note of the
allegations attributed to
the discussion between the applicant and
Charmain and thus did not dispute them.
[4]
According to the applicant, Charmain discouraged her from purchasing
property for student accommodation.
She encouraged her to buy
property sold by the first respondent, who is a developer. She also
informed her that the property levies
amount to approximately R800.00
per month per unit .She informed her that the unit to be
purchased could generate rental
income of about R7 600.00 per month.
She went to view the property after which she made an offer. At the
time of submitting the
offer, the applicant also addressed an email
to Charmain in which she expressed the following sentiments:
“
Mme
I am doing this
against my better judgment. Reliance only on your word and
commitment.”
Her offer was
subsequently accepted. On 31 January 2024 she paid the whole purchase
price after Charmain had provided her with an
account. Two days
thereafter the second respondent forwarded her transfer documents
which she signed and returned.
[5]
Thereafter in her communication with Charmain, she learnt that there
was no luck in finding a
tenant. She then formally in writing
purported to cancel the agreement on the basis of “unforeseen
and pressing financial
circumstances.” The second respondent
informed her that the deeds were to be lodged on 9 February 2024. It
is common cause
that such deeds were indeed lodged on the said date
but were rejected on 14 February 2024 by the Deeds Office. The
applicant then
instructed her attorneys of record to seek
cancellation of the agreement. Attempts were made to settle the
matter to no avail hence
this application was instituted on an urgent
basis.
[6]
The respondents contend that the applicant has failed to demonstrate
that the application is urgent.
According to the respondents, the
urgency alleged by applicant is self-created as the applicant had
been aware of the pending registration
since 8 February 2024. The
respondents contend that had the Deeds Office not rejected the
documents on 14 February 2024 the property
would already have been
registered in the names of the applicant.
[7]
Urgent applications are governed by Rule 6(12)(b). It provides as
follows:
“
In every affidavit
or petition filed in support of any application under para(a) of this
subrule, the applicant shall set forth
explicitly the circumstances
which he avers render the matter urgent and the reasons why he claims
that he could not be afforded
substantial redress at a hearing in due
course.”
This Rule requires the
applicant to establish two requirements, namely, the circumstances
relating to urgency which have to be explicitly
set out as well as
the reasons why the applicants cannot be afforded substantial redress
at a hearing in due course. According
to the oft-quoted case of
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another(t/a Makin’s
Furniture Manufacturer’s
[1]
”
an applicant must make out a case in the founding affidavit to
justify the particular extent from the norm, which is involved in
the
time and day for which the matter has been set down.”
[8]
The evidence reveals that on 9 February 2024
when the second respondent rejected the purported cancellation
of the
agreement, the applicant immediately sought the assistance of her
current attorneys of record. The latter immediately dispatched
a
letter to the second respondent. There was exchange of correspondence
in the following days between the second respondent and
the
applicant’s attorneys of record. The exchange in correspondence
culminated in the meeting of 20 February 2024. The applicant
avers
that the second respondent would also have attended the meeting but
ultimately did not do so. In response to this allegation
the second
respondent does not put this allegation in dispute. In my view, from
the moment the applicant became aware of the intended
transfer she
sought to seek an amicable resolution to the dispute without recourse
to litigation. None of the respondents contend
that they informed her
that they were not amenable to amicable resolution of this dispute.
As soon as she became aware that the
matter could not be resolved,
she took steps to bring this application.
[9]
It is now settled
[2]
that an applicant in order to be successful for relief for an interim
interdict, must prove the following four requirements:
a)
prima facie right, even if it is subject to some doubt;
b) a
reasonable apprehension of irreparable and imminent harm if an
interdict is not granted and ultimate relief
is eventually granted;
c)
the balance of convenience favours the granting of the interdict; and
d) the
absence of any satisfactory remedy,
[10]
At the heart of this dispute are the allegations
of misrepresentations attributed to the employee and/or
agent of the
first respondent. The case for the applicant is that as a result of
the alleged misrepresentations she was induced
by
Charmain to purchase the unit which is the subject matter of this
dispute. The version of the applicant amounts to the view
that had
she not been induced by material misrepresentation to purchase this
property, she could not have bought it. The only evidence
at this
stage is the version of the applicant. The first respondent chose not
to counter the allegations by giving a version of
Charmain, though
Charmain is its agent. The end result is that this application ought
to be adjudicated on the undisputed version
of the applicant and only
for the purposes of this interim application. I am satisfied that the
applicant has established prima
facie right, though open to doubt,
and that the respondents threaten such a right.
[11]
Much was also made about the issue of the alleged cancellation of the
agreement by the applicant. This court
cannot be drawn into this
issue as it is an issue for the trial court.
[12]
The evidence reveal that the applicant and Charmain had some form of
a business relationship. Charmain was
entrusted with the rental of
the applicant’s property at Sereno. She approached Charmain to
find her another investment property.
Common sense would dictate that
she would not settle for property which would set her back in her
purse. She wanted an investment
property. According to her, Charmain
informed her that she had a long list of potential tenants. She could
not have anticipated
that there would be no tenants and that she
would have to pay for the levies from her pocket. Should this
eventuate, this would
cause her irreparable harm as she cannot later
recoup this unforeseen expense.
[13]
It is contended by the respondents that the balance of convenience
does not favour the granting of the interdict.
According to the
respondents, the registration of the sectional title scheme and
transfer of the properties are lodged as one transaction
with the
Deeds Office. The transfer of the sectional title units is done by
transferring all units at the same time into the names
of the various
purchasers. It is thus contended that holding one transfer will hold
the entire process. If one were to weigh where
the interests of
justice lie, in a situation where a person, assuming she is correct,
that she was induced into concluding an agreement
she could not have
entered into, but for the material misrepresentations, against the
plight set out by the respondents, in my
view the scales would tilt
in favour of the person who was induced into an agreement by false
misrepresentations. The prejudice
she will suffer if the order is not
granted, far outweigh the prejudice to either of the respondents. I
am satisfied that the applicant
has no other alternative remedy and
is entitled to the relief sought.
[14]
It is trite that the issue of costs lies in the discretion of the
court. In my view, despite the opposition
of this application, the
issues raised in this application would be ventilated in the action
to be instituted. The proper order
would thus be that the costs shall
be costs in the trial. I accordingly order:
ORDER
1.
That this application be heard as an urgent application and that the
non-compliance with the time limits,
forms and service be condoned as
envisaged by Rule 6(12) of the Uniform Rules;
2.
That a rule nisi be issued returnable on 28 March 2024 at 9h30
wherein the respondents are called upon
to show cause, if any, why
the following orders should not be made:
a) That
the fourth respondent be prohibited from transferring, at the
instance of the first respondent, a sectional
title unit situated in
the sectional title development known as SISULU HEIGHTS, STAND 2[…],
DISTRICT BLOEMFONTEIN, EXT 148,
and with physical address situated at
5[…] J[…] Avenue, Lourier Park, Bloemfontein, purchased
by the applicant from
the first respondent;
b) That
paragraph 2(a) above shall serve as an interim interdict with
immediate effect pending the finalization
of an action to be
instituted by the applicant against the first respondent for
confirmation of the cancellation of the sale agreement
and intended
transfer of the property into the applicant’s name and for the
repayment of the purchase price in the amount
of R570 000( Five
Hundred and Seventy Thousand Rand) to the applicant, which action
must be instituted within 14 days from the
date of the final
adjudication of this application;
c)
That the costs of the application be costs in the main application.
P.
MOLITSOANE
, J
For
the applicant:
Adv.
CD Pienaar
Appearing
with:
Adv.
M Moeng
Instructed
by:
LM
Attorneys and Partners
Bloemfontein
For
the respondents:
Adv.
Van der Sandt
Instructed
by:
Coetzer
Inc.
Bloemfontein
[1]
1977(4)
SA 135(W) at 135F.
[2]
See
Setlogelo v Setlogelo
1914 AD 221
at 227.